Citation Nr: 0929550
Decision Date: 08/07/09 Archive Date: 08/14/09
DOCKET NO. 07-09 996 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to an effective date earlier than June 1, 2006
for the additional dependency allowances for a spouse and
child.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Emily Tamlyn, Associate Counsel
INTRODUCTION
The Veteran served on active military duty from September
1979 to October 2000.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2006 administrative decision of
the Department of Veterans Affairs Regional Office (RO) in
Hartford, Connecticut. In that decision, the RO assigned a
June 1, 2006 effective date for the Veteran's dependency
benefits.
In September 2007, the Veteran testified at a Board hearing
before the undersigned. A transcript of the hearing has been
associated with the file.
FINDINGS OF FACT
1. C.R. was born in December 1991 and the Veteran married
L.M.G. in September 2004.
2. On May 10, 2006, the Veteran submitted VA Form 21-686c,
Declaration of Status of Dependents as part of a claim for
additional compensation benefits.
3. Evidence that L.M.G. is the Veteran's dependent spouse and
that C.R. is the Veteran's dependent child was not received
prior to May 10, 2006.
CONCLUSION OF LAW
The criteria for an effective date earlier than June 1, 2006
for the payment of additional compensation benefits for the
Veteran's spouse and child have not been met. 38 U.S.C.A.
§§ 1115, 5110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.4,
3.31, 3.204, 3.205, 3.400, 3.401 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and to Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits, as codified in pertinent part at
38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2008).
There are some claims to which the VCAA does not apply, such
as claims based on allegations that VA decisions were clearly
and unmistakably erroneous. Livesay v. Principi, 15 Vet.
App. 165, 178 (2001). The VCAA also does not apply to claims
based on statutory interpretation. Smith v. Gober, 14 Vet.
App. 227, 231-2 (2000). In addition, remand of claims
pursuant to VCAA is not required when evidentiary development
has been completed. Wensch v. Principi, 15 Vet. App. 362,
368 (2001). When it is clear that there is no additional
evidentiary development to be accomplished, there is no point
in remanding the case. Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991).
In this case, the Veteran has been notified of the evidence
necessary to successfully prosecute his claim, and has been
given notice of the laws and regulations governing the claim.
The Veteran was informed after his original grant of service
connection in an August 2001 notice letter that he was being
paid as a Veteran with two dependents. He was told in that
letter that he was to let VA know right away if there was any
change in the status of his dependents. The Veteran has
participated in the claims process and has shown his basic
understanding of what is required to substantiate his claim.
He has given testimony before the undersigned Veterans Law
Judge and has been represented by a veterans service
organization throughout this appeal. There is nothing in the
record to suggest that he has not understood the nature of
his claim and the evidence necessary to substantiate it. As
such, the Board is satisfied that the Veteran is not
prejudiced by any action or inaction on the part of VA and
will move to an adjudication of the claims on the merits.
All pertinent evidence has been gathered and there is no
indication that additional pertinent evidence is outstanding.
This case involves the application of law to certain facts,
and those facts are already established by the evidence now
of record and are not in dispute. Collecting additional
evidence would not be productive or helpful to the Veteran's
appeal. See, Smith 14 Vet. App. at 231-2 (2000). Therefore,
no further development of evidence is necessary for this
appeal and the VCAA requirements are satisfied. Mason v.
Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown,
6 Vet. App. 426, 429-30 (1994) (where the operation of law is
dispositive, the appeal must be terminated because there is
no entitlement under the law to the benefit sought).
II. Legal Criteria
Except as otherwise provided, the effective date of an award
of compensation based on an original claim, a claim reopened
after a final disallowance, or a claim for increase will be
the date of receipt of the claim or the date entitlement
arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400. An award of additional compensation for dependents
based on the establishment of a rating in the percentage
specified by law for that purpose shall be payable from the
effective date of such rating, but only if proof of
dependents is received within one year from the date of such
rating. 38 U.S.C.A. § 5110(f). Veterans having a 30 percent
or more service-connected disability may be entitled to
additional compensation for a spouse. 38 U.S.C.A. § 1115;
38 C.F.R. § 3.4(b)(2).
The effective date of the award of any benefit or increase by
reason of marriage shall be the date of that event if proof
is received by VA within a year from the date of marriage.
38 U.S.C.A. § 5110(n). Regarding additional compensation for
dependents, the effective date will be the latest of the
following dates: (1) date of claim; (2) date the dependency
arises; (3) effective date of the qualifying disability
rating provided evidence of dependency is received within a
year of notification of such rating action; or (4) date of
commencement of the veteran's award. 38 C.F.R. § 3.401(b)
(emphasis added). The earliest that the additional award of
compensation for a dependent spouse can occur is the first
day of the month following the effective date. 38 C.F.R.
§ 3.31.
III. Analysis
In a July 2001 decision, the Veteran was granted a combined
evaluation for compensation of 70 percent from November 1,
2000. An August 2001 letter notifying the Veteran of his
grant of benefits reads: "We are paying you as a veteran
with 2 dependents. Your payment includes an additional
amount for your children [K and A]. Let us know right away
if there is any change in the status of your dependents."
On May 10, 2006, the Veteran submitted VA Form 21-686c,
Declaration of Status of Dependents. In addition to K and A,
the Veteran added L.M.G. as his spouse, listing September 8,
2004 as the date of his marriage. The Veteran provided a
license and certificate of marriage with September 8, 2004 as
the date of the marriage. The Veteran also listed C.R.
(L.M.G.'s child) as a dependent.
A May 26, 2006 RO administrative decision shows the RO
amended the Veteran's disability compensation award and
included additional benefits for his spouse and children.
The effective date was listed as June 1, 2006. This document
reminded the Veteran to again notify VA if there was a change
in the number or status of his dependents. The document also
requested a public record of birth showing the names of both
parents for C.R. The Veteran sent this document along with
his notice of disagreement in July 2006.
The Veteran's July 2006 notice of disagreement stated that he
would like to appeal the effective date of June 1, 2006
because he was married in September 2004. The Veteran stated
that the effective date of compensation should be September
8, 2004 because "through your website, your customer service
representatives confirmed that this award would be backdated
to the date of the marriage." The Veteran later stated in
his February 2007 substantive appeal that he forgot to file
for his wife and step child after he remarried. At the
September 2007 hearing, the Veteran asserted that it was
either December 2004 or January 2005 that he inquired about
filing for additional dependents though the VA website.
(Board transcript, p 6.)
The essential facts are not in dispute here. The Veteran
admits he filed for additional dependent benefits and
provided the requisite documentation in May 2006. He was
married in September 2004. He did not file within one year
of his marriage as required by 38 U.S.C.A. § 5110(n). As a
result, the effective date is the latest of the following
under 38 C.F.R. § 3.401(b): (1) date of claim; (2) date the
dependency arises; (3) effective date of the qualifying
disability rating provided evidence of dependency is received
within a year of notification of such rating action; or (4)
date of commencement of the veteran's award. The facts show
the latest event was the date of the claim. Since the
earliest that the additional award of compensation for
dependents can occur is the first day of the month following
the effective date, the Veteran began receiving compensation
as of June 1, 2006. 38 C.F.R. § 3.31.
Under these circumstances, the Board must conclude that there
is no legal basis for an effective date earlier than June 1,
2006. The claim for an earlier effective date must be
denied. There is no evidence in the file regarding an
earlier inquiry by the Veteran on the issue of backdating his
claim to the date of his marriage. The Veteran has also not
produced any evidence this inquiry took place. There is no
evidence in the file the Veteran was remarried until the May
2006 Declaration of Status of Dependents form. While the
Board is sympathetic with the Veteran's contentions, he did
not submit the required information until May 2006. As a
result, the Veteran's appeal must be denied on the basis of
lack of entitlement under the law.
ORDER
An effective date earlier than June 1, 2006 for the payment
of additional compensation for the Veteran's spouse and child
is denied.
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs